spouse visa overstayed

[ADDISABABA]

hi there,

my wife was issued with a spuse visa and it says it is valid until 5 August 2010, howevere she arrived in the uk on 13 sep 2008 and she will complete her two years on 13 sep 2010. i am quite worried that she may be overstaying. we are going to apply for ILR this week and i want to know if it will be acceptable to home office as we innocently thought that we should apply before 13 sep. i was alerted she should have applied by 5 August by someone. what do you guys think will happen to her application. i need advice from any one who knows something.

many thanks

[geriatrix]

At the moment, you need to focus on the possibility / chances of your spouse being granted leave to remain on basis of an out-of-time application rather than trying to apply for settlement as an overstayer.

See also spouse visa expired Urgent advice !!!!!!!!


regards

[jammybunn]

Officially she has overstayed if the visa was only valid till 5th August. That said for SET(M) applications there is no requirement for the application to be in time so as long as you have demonstrated that you meet the rules, get the application in ASAP and you should still be granted

[Casa]

Where do you get the idea that SET(M) applications don't have to made within the time? They certainly do. However if an application is only just outside of the visa validity the UKBA can make a discretionary decision to grant ILR. This required an URGENT postal application.

[jammybunn]

they certainly dont have to be in time to satisfy the requirements of paragraph 287
(i) completed 2 years leave as a spouse
(ii) relationship is genuine and subsisting
(iii) intend to live together permanently
(iv) maintain and accommodate
(v) no recourse to public funds
(vi) LUK/ESOL

there is no part of the rules that specify it has to be in time. It is only if you are encountered that it could be a problem if you havent applied hence why i said get application in ASAP

[grantstevens]

Out of time is a big problem - my application is out-of-time and believe you me it is a real issue! My recent correspondence from UKBA via my MP has stated that should my application be unsuccessful, I will have no right to appeal and could/will be deported. So, very serious. I applied under SET(M).

[jammybunn]

Out of time is a big problem - my application is out-of-time and believe you me it is a real issue! My recent correspondence from UKBA via my MP has stated that should my application be unsuccessful, I will have no right to appeal and could/will be deported. So, very serious. I applied under SET(M).

that's just standard official talk, once you have an application outstanding no removals can take place. Secondly if your application meets the requirements of paragraph 287 as laid out in my last post (none of which mentions "in time") then your application cant be refused

[Casa]

Jammybunn, I know you're new to the forum but you're giving very bad advice here. If the application is made after the visa has expired the decision to grant ILR is entirely at the discretion of the UKBA. Regrettably many spouses who have applied late have had to return to their country of origin to re-apply.
If the late application is refused then anyone who remains will be here illegally. Not to be recommended.

[Danbrix]

I completely agree with Casa. I know it doesn't help the OP but have a look at this ...

Please do not send us your application more than 28 days before the end of your two-year qualifying period. If you do, we may refuse your application and we will not refund the fee. However, you must apply before your current permission to remain in the UK ends.

[Casa]

Thankyou Danbrix

[geriatrix]

None of the paragraphs (immigration rules) relating to requirements for indefinite leave to remain (under all possible routes to settlement) explicitly mention that the settlement application must be made in-time. Should one therefore assume that no settlement application needs to be in-time? Should be okay then for everyone to become an overstayer (illegal) and still be "entitled" to settlement!

The issue is not whether the applicant making an out-of-time application will be subject to removal / deportation from the UK but whether becoming / being an illegal immigrant as a result of out-of-time application(s) can have an adverse affect on the individual's legal stay in the UK .. which in turn may negatively impact any future applications for stay / naturalisation.

IMHO ...


regards

[jammybunn]

Jammybunn, I know you're new to the forum but you're giving very bad advice here. If the application is made after the visa has expired the decision to grant ILR is entirely at the discretion of the UKBA. Regrettably many spouses who have applied late have had to return to their country of origin to re-apply.
If the late application is refused then anyone who remains will be here illegally. Not to be recommended.

if the application is made after the visa has expired and the requirements of the rules are met then theres no discretion about it, if the rules are met it is a grant of ILR. It could only be refused on any criminal/non disclosed prosecutions

[Chid]

The best thing I think is to apply for your ILR now and get it sorted and then deal with your wife's. I know its costly but atleast u are free and as a legal right Home office must give your wife ILR later.

Do not jeopardise your chances.

All the best

[Casa]

Sorry Jammybunn, but you're wrong. Ask all those who had to return to re-apply from their home country following out of time applications how many of them had criminal convictions. There is no automatic right to remain if the visa has expired when the application is made.
Please don't mislead members. This can have disastrous consequences.

[grantstevens]

After havingmy out-of-time SET(M) application approved yesterday, my solicitors felt I wasd extremely lucky! So much so that they refused to accept my case on a no win-no-fee basis. I have had lots of dealings with these solicitors on work related matters and they felt strongly that this was a major issue.

[jammybunn]

Sorry Jammybunn, but you're wrong. Ask all those who had to return to re-apply from their home country following out of time applications how many of them had criminal convictions. There is no automatic right to remain if the visa has expired when the application is made.
Please don't mislead members. This can have disastrous consequences.

FACT... i grant enough to know, im not saying for people to let their visa expire and not worry about it, im just trying to ease the worry of the OP who has made a genuine mistake

[vinny]

Settlement rules for spouses

[newbiepk]

Helly Jammy,

can you recommend any solicitor? I am facing similar problem.

[morleyaxis]

Is there now a consensus on the issue of whether one can apply for ILR (on a set(m)) after overstaying one's spouse visa? Vinny's link to "Settlement rules for spouses" would seem to settle the issue, which means that jammybunn was right despite other views to the contrary? If anyone has any practical advice or case histories it would be greatly appreciated.

[Casa]

You've posted in a thread that is more than 2 years old.

[morleyaxis]

Sorry was not aware of that rule...

[Casa]

No problem. It's not a rule but you may not get response from an old thread and some of the information is likely to be out of date.